The Burgess opinion and “The End of Men”

Every published opinion tells a story and the January 15, 2014 Court of Appeals opinion in Burgess v. Burgess, 753 S.E.2d 566 (S.C. App. 2014), tells a particularly interesting one. Like Hanna Rosin’s “The End of Men: And the Rise of Woman,” Burgess demonstrates a culture that defines men primarily as providers and shows little use or empathy for men who can no longer provide.

Until 2008 Mr. Burgess appears to have been a success story. Parlaying a B.S. in business administration into a career in commercial real estate, between 2001 and 2007 his income ranged from $91,789 and $675,374 annually. Ms. Burgess, who also had a bachelor’s degree, was able to quit work upon the birth of their first child. By 2008, the parties had been married 26 years and raised four children to adulthood. In 2008, as the real estate market started collapsing, she went back to work. However she was laid off the next year and, rather than search for work, she returned to college for a Master’s Degree in student affairs from Clemson. Meanwhile, in February 2009, Mr. Burgess was forced out of his real estate partnership. Ms. Burgess moved out two months later and filed for separate maintenance the next day.

Her timing demonstrates that what she valued in her husband was his earning capacity. The marriage couldn’t last two months after he was downsized. It is likely that her decision to leave was planned, as she was able to file for separate maintenance the day after she left. One of her complaints was that Mr. Burgess was no longer providing a $1,000 a week allowance. Apparently missing from her reasoning is that Mr. Burgess was only making $31,000 a year (having fallen from $384,237 in 2007) and that she had chosen to go back to college rather than work. Her being laid off led her to chose further education. But her husband’s downsizing did not afford him similar flexibility or opportunity.

As Hanna Rosin notes, the recession of 2008 hit men harder than women. Women’s wages and employment levels have recovered; men’s have not. In America there are now more employed women that men. The worst-hit industries were overwhelmingly male and deeply identified with macho: construction, manufacturing, high finance. A workforce that values communication, collaboration and the ability to sit still over brute strength and physical activity increasingly plays to women’s strengths. Men dominate just two of the 15 job categories projected to grow the most over the next decade: janitor and computer engineer. Women have everything else: nursing; home health assistance; child care; food preparation.

Sixty percent of bachelor degrees are awarded to women and women are close to becoming the majority in most graduate and professional school programs. Women, such as Ms. Burgess, used the recession as an opportunity for further education to a much greater extent than men did. Women are now the primary wage earner in 42% of American households and this percentage is increasing. This trend is even more pronounced in working and middle class households. Meanwhile, the daily compromises of marriage have little appeal to women who aren’t benefitting from a husband’s greater financial support. If Ms. Burgess had little use for a financially struggling husband, she is part of a common trend.

That Ms. Burgess may have had little use for a husband who could no longer maintain her in an upper-middle class lifestyle did not prevent her from seeking alimony. The family court sympathized with her, awarding her $25,800 annually from a husband who was making $31,000. Like our society in general, and Ms. Burgess in particular, the family court had little use for a man who wasn’t providing–so continue to provide Mr. Burgess must.

The trends that have men contributing increasingly smaller portions of the family budget show no sign of reversing but our society still has no role for men other than provider. The past fifty years have eroded or eliminated traditional sources of paternal authority: moral, emotional, social, and physical. Now even men’s role as provider is diminishing. That we have quadrupled the number of incarcerated men in a generation and are incarcerating men (I believe too quickly) for failing to fully comply with court-ordered support only hinders their ability to become stable “providers.”

I represent a handful of men like Mr. Burgess every year. These men worked hard and took pride in providing for their wives and children. However when they lose their high status and high income positions the court regards them with tremendous suspicion. If the job loss was due to their being unable to continue to meet their workplace’s requirements, the law considers their reduced earning capacity to be their “fault” and acts as though they should continue to provide financial support at the same level.

Even when it is clear that the job loss was not their fault the family court still inflates their earning capacities and sets support obligations that leaves my clients working longer hours than their ex-wives work for a lesser lifestyle than their ex-wives enjoy. The 2009 opinion of Gartside v. Gartside, 383 S.C. 35, 677 S.E.2d 621 (Ct.App. 2009), which required a downsized ex-husband to continue paying alimony despite the fact that his ex-wife now had a greater income than he did, is not an anomaly.

There’s a belief that my downsized clients are lazy and choosing to work for half their earning capacity in order to reduce their support obligations. I’ve yet to have a client reject a high paying job offer for a low paying one in order to reduce his support obligation and the economics of such a choice make no sense. In my twenty years of practice the court has never had a problem raising a male client’s support obligation because his income increased but it is generally a continual struggle–emotionally and financially–to obtain a support reduction when his income decreases. Such clients are endlessly scrutinized as to why they are not making more money. Any “unessential” spending–vacations, restaurants, new vehicles or nice clothing–is used to justify keeping support at previous levels. It is though the court expects these men to work long hours at stressful jobs but to live lives with few material pleasures.

Case such as Gartside and Burgess demonstrate a sad lack of empathy towards men who can no longer provide at the level they once were able to. Until we find new and respectful roles for men within our society the declines in marriage and family stability will not abate.